Even the libraries can't escape expanded powers to spy

Closing time couldn't come quickly enough for Karen Avenick as she sat in her third-floor office on the warm Friday afternoon of Oct. 12, 2001.

The papers were filled with news of the aftermath of the 9/11 terrorist attacks, and the day had been further darkened by official confirmation of a case of anthrax in New York City. Avenick, a 54-year-old librarian in Camden County, was looking forward to a break from the gloom, dinner out with friends visiting from the West Coast.

But her plans went awry when she learned police had called on the quiet South County Regional Library in rural Winslow Township, one of six branches in the county system she oversaw as associate director.

The police, she was told, were demanding library records and trying to take several computers. Although she was told the events of 9/11 were involved, Avenick was 10 miles away in the county's main branch in Voorhees, and "had no clue what was happening," she recalled recently.

"They wanted everything, and I said, 'We can't give it to you.'"

The police thought otherwise.

"They rode herd," she said, trying to pressure library staff to release information. Avenick, a librarian for more than 30 years, told her staff to hang tough. "You never give out customer information" without the proper subpoenas or warrants, she said.

The police explained they were acting on an anonymous tip Winslow Township police had received at 11:24 that morning. The tipster, a male patron, said he was alarmed by the suspicious actions of a Middle Eastern man he'd seen in the library almost every day since Sept. 11.

Avenick was troubled about the national security implications, but insisted on a subpoena. When one arrived, it sought carte blanche access to computers and other library records.

"It was too general," she said. "That's everybody's privacy we were talking about."

The police, who had contacted the FBI by that time, were not happy.

"One of the police told me I was obstructing justice," she said. This was not an accusation the New Jersey Library Association's 1997 Librarian of the Year expected. "I said, 'I'm sorry officer, I am upholding the law.'"

***

New Jersey and 47 other states have laws declaring that library records should be kept confidential. But two weeks after Avenick's standoff with the local cops, Congress passed the USA Patriot Act, which granted law enforcement expanded access to personal and business records.

While several provisions of the act apply to libraries, it's Section 215 that has come to be known as "the library provision." It allows federal investigators to seize "any tangible things," including books, records, papers and documents, with an order from the Foreign Intelligence Surveillance Court, a secret tribunal that routinely grants warrants for terrorism investigations.

To obtain these warrants, investigators are no longer required to convince the court that a search is likely to produce evidence of a crime, and it is unclear if libraries can consult with counsel or challenge these orders in court.

What bothers librarians most, however, is that they are forbidden to talk about such requests. In a surreal twist, librarians are suddenly the ones being shushed. "It's Kafkaesque," Michael Gorman, president of the American Library Association, has said.

Librarians aren't the only ones troubled by this. Seven states and at least 389 communities nationwide, including 15 municipalities in New Jersey, have drafted resolutions calling for the act's revision. Many of these resolutions demand the exclusion of libraries from Section 215, which will expire at year's end if not renewed by Congress.

In July, within three weeks of the terrorist bombings in London, the House and Senate passed separate bills to reauthorize the Patriot Act. Although they differ on some points, both would make it more difficult for federal agents to obtain library records, and both would offer librarians access to legal counsel and the opportunity to challenge search warrants.

The Senate version, praised by the ALA, requires that government requests pertain to agents of a "foreign power" -- the standard that existed before the Patriot Act -- and that they be approved by the FBI director or his deputy. It would also require the provision to be renewed in four years.

The House bill would allow the government to seek records relevant to any investigation of international terrorism -- not just those pertaining to agents of a "foreign power" -- as long as they are approved by the FBI director. Like the Senate version, the bill would require the provision to be renewed, but in 10 years, not four.

For all the debate about the "library provision" of the Patriot Act, the real issue seems to be how often the government is using it. At a congressional hearing this spring on the act's reauthorization, Attorney General Alberto Gonzales testified that Section 215 had never been used to get information from libraries.

The reason is that libraries are cooperating, said FBI Director Robert Mueller earlier this year. Investigations in libraries often are at the invitation of librarians who saw something suspicious or are conducted with traditional criminal subpoenas, according to the Patriot Act's principal author, Viet Dinh.

Whether under Section 215 or by other legal means, law enforcement has been active in libraries in the aftermath of 9/11, according to a survey released by the ALA this summer. Since October 2001, 63 public libraries and 74 academic libraries surveyed received legally executed requests. (The survey did not ask about visits before 9/11 for comparison, nor did it ask if the requests made reference to the Patriot Act.)

Anxiously awaiting what will happen in Congress and the courts, where challenges are under way, many librarians continue to shred Internet sign-up sheets and post warnings that patrons could be under surveillance. A resolution passed last year in Montclair urges libraries to do both. A sign posted in a Guilford, Vt., library reads: "Q. How can you tell when the FBI has been to your library? A. You can't."

Such responses are a sign of "baseless hysteria," said then-Attorney General John Ashcroft in a 2003 speech defending the Bush administration's anti-terror law.

***

Winslow Township is a fairly laid-back place, where the thunder from drag-racing at Atco Raceway is often all that disrupts the quiet. Malcolm Forbes, the late New Jersey publishing magnate, once visited the track to race his motorcycle against an airborne helicopter.

Out of earshot of the track's rumble, the South County library, the newest in the Camden County system, opened in December 2000. Considered state-of-the-art, it was designed with rows of book stacks shooting off the central reference desk like the radials of a tire.

The library's showpiece, however, was an impressive technology center for teaching computer literacy. It was there, in a climate-controlled room off the circulation desk with low lighting and a dozen computers, that someone became suspicious of a man who appeared to be Middle Eastern.

The man's behavior, according to a police report filed several weeks later, was attention-grabbing. Since the day before Sept. 11, he had been parking a car with Pennsylvania license plates in the South County employees' lot and using the library almost daily.

"He is on the computer for hours at a time and will go to the pay phone and be on it for at least two hours straight, and then use his cell phone for about a half hour, then go back to the computer for hours," according to the report.

After observing the man's activities and overhearing long conversations in a foreign language, "the employees at the library became suspicious and contacted the police," the report said.

No one knows for sure who called the cops, but some agree with the police that it was a librarian. "I always thought it was a staff person," said Claudia Sumler, the library system director. "We were never able to prove it."

Patty Slezak, a librarian who had joined the staff that summer, fresh out of library school at San Jose State University, said a colleague actually told her she had been unnerved and had taken action.

"We were just shooting the breeze," Slezak said, when the librarian confided that she had asked her boyfriend to call the cops, acting as an anonymous patron.

Slezak, who had a family member who survived the attacks at the World Trade Center and who herself was almost aboard the Pan Am jetliner that was blown up by terrorists over the Scottish town of Lockerbie in 1988, was irked by what she viewed as the librarian's unprofessional attitude. "She decided to take it upon herself," Slezak said.

Once the call was made, whoever might have made it, the post-9/11 fear of terrorism gained a firm grip on the quiet Winslow Township library.

***

Fear is not an emotion typically associated with the library, an institution held sacred by many. The writer E.B. White once marveled at the very existence of a place where people freely pursue whatever ideas they please. "Break not the hush that surrounds this miracle," he wrote.

Protecting patrons' privacy is a basic tenet of the American Library Association's Code of Ethics and of state library confidentiality laws. Most librarians take seriously their role as defenders of intellectual freedom, which is why the Patriot Act has caused such a stir.

Another provision of the act that affects libraries is Section 505, which allows the government to seize electronic records, using what are known as National Security Letters. These letters are issued by the Justice Department without judicial review and prohibit recipients from talking about them.

Some think the letters are the primary method the government is using to obtain library information, particularly as libraries become Internet portals for millions of patrons.

A study released this summer, commissioned by the Bill and Melinda Gates Foundation, found that almost all public libraries offer free access to computers and the Internet; just a decade earlier, the figure had been closer to 20 percent.

Federal authorities have conceded they prefer to use National Security Letters when possible. "The more appropriate tool for requesting electronic communications transactional records (from libraries) would be the National Security Letters," Assistant Attorney General Daniel Bryant wrote in a letter to Congress in 2002.

Last month, the American Civil Liberties Union announced it was representing a member of the library association in a federal lawsuit filed in Bridgeport, Conn., challenging the constitutional basis for National Security Letters.

At a hearing on Aug. 31, the ACLU asked the judge to remove the gag order so its client could speak out against the Patriot Act. On Friday, U.S. District Court Judge Janet Hall agreed to lift the gag order, but stayed her decision until Sept. 20 to give the government time to appeal.

Section 505 is not set to expire, but it was ruled unconstitutional last year by a federal judge in New York in a different lawsuit brought by the ACLU. The New York case involved an unnamed Internet service provider that received such a letter. The decision is under appeal.

Another little-noted provision of the Patriot Act, Section 217 -- known as the computer trespasser provision -- could assist librarians who believe someone is using a computer in unauthorized way, such as showing false identification when signing up for access.

The provision was envisioned as a way to help network operators combat hacking by inviting law enforcement to monitor their computer systems, but critics say it could provide librarians a loophole of sorts to report suspicious activity.

What bothers some privacy advocates is that the law is vague: It's not clear libraries can demand investigators leave once they are invited in. Section 217 is set to expire at the end of the year, but is expected to be reauthorized.

The tension between national security and patrons' privacy was vexing for librarians even before the Patriot Act.

One well-publicized incident occurred in Delray Beach, Fla., when a librarian informed police just a few days after 9/11 that three of the hijackers -- Marwan al Shehhi and the brothers Wail and Waleed al Shehri, who flew United Airlines Flight 175 into the South Tower of the World Trade Center -- had accessed the Internet at her library that summer.

"I talked to all three of them," reference librarian Kathleen Hensman recalled recently. "They were polite. I was very upset."

Hensman's decision to notify authorities caused a controversy within the library community. Judith Krug, director of the ALA's office for intellectual freedom, initially criticized Hensman publicly for breaking Florida's library confidentiality law. When it was later made clear that Hensman merely reported what she saw in the library without turning over any confidential records, Krug backed off.

"Those were extremely extenuating circumstances," Krug says now. "In that situation, I am not sure I would not have done the same thing."

***

On the wall in Karen Avenick's office in Voorhees is an illustration from Maurice Sendak's classic children's book, "Where the Wild Things Are." Her experience with the police in the Winslow Township case left her feeling a bit like the child in the story, Max, who was sent to bed without supper for misbehaving.

After many sessions of the New Jersey Library Association's intellectual freedom subcommittee, Avenick thought she was prepared to handle law enforcement. But on Oct. 12, 2001, with the police insisting on access to records and computers, she felt like she "was in the deep end of the pool."

So she dug in and insisted authorities come back with the proper subpoenas.

As the legal issues were being worked out in the county office, police were trying to get library staff to tell them more about the mysterious computer user. At first, the staffers declined to answer, citing New Jersey's library confidentiality law.

"I explained to the employees that suspicious activity of a patron is not the same as (revealing) what they are viewing on the computer or what books they are taking out," Detective Patricia Turner wrote in her report. "After I explained to the employees the difference between the two, they started opening up to me with what they have observed over the past month."

What they observed, library director Sumler later surmised, was a man who stood out. "This part of the county is a very rural area," she said. "He just looked different."

Among other things, Turner was told the man was constantly on the phone and computer, carried a calculator and clipboard, and sent long, detailed messages via "the Yahoo e-mail program which apparently cannot be traced."

The person monitoring the technology center reported seeing the man, along with another male, looking at a photo of Osama bin Laden around 6 p.m. Sept. 11. The police report stated this was before the terrorist's name was linked to the attacks, but, in fact, CNN had reported a possible connection before noon that day.

While Turner was interviewing staff, another officer, Robert Stimelski, was trying to pull up a search history from a computer the man had used the day before, coming across a Web site advertising a Rick Springfield concert on Oct. 20 in Decatur, Ill.

The police couldn't be sure the man had visited the Web site, but told the FBI to notify concert sponsors so they could beef up security in case the man or one of his associates tried to "commit a terroristic attack at the concert."

Within a day, the county library managers accepted a redrawn subpoena from the FBI. It was "more specific," Sumler said, asking for information about the use of certain computers at certain times. The library staff also agreed to notify the FBI if the man came back and what computers he used, she said.

Was the man an innocent patron of the library, or was he using the library's resources to no good end, as the 9/11 terrorists had done? The police decided to wait and watch, and they insisted the librarians remain silent.

"We weren't supposed to talk about this," Sumler said. "And this was before the Patriot Act."

Over the next few weeks, library staff kept an eye on the man, who continued to use the computers and talk on the phone. He was sometimes accompanied by another man or a woman on crutches. An FBI surveillance team was often in the library.

The surveillance turned up nothing definitive, however, and on Nov. 7, 2001, nearly a month after the police confronted Karen Avenick and her staff, the authorities decided it was time to confront the mystery man himself.

***

As it turned out, the patron identified by library staff as a Middle Eastern man speaking mainly a foreign language turned out to be a 27-year-old doctor named Charanjit Vedi, born in the southern Indian city of Hyderabad, whose English is careful and clear.

The year 2001 was a big one for Vedi.

He was newly married, having wed a woman from Puerto Rico named Margarita Gonzalez in a civil ceremony at the courthouse in Bristol, Pa. That December, he would have his green card hearing and, if all went well, he planned to embark on a medical career in the United States.

The couple had moved from an apartment in Pennsylvania to a home in Atco, closing on a $57,600 house on Sept. 7.

The doctor promptly got a library card at the South County library just a mile from his home and took advantage of its resources when he wasn't taking classes at the Kaplan Center in Philadelphia to prepare for exams.

Then, on Nov. 7, 2001, the FBI and police came to call.

The investigation "scared the heck out of me," Vedi said during a recent phone conversation from Monmouth Medical Center in Long Branch, where he is a third-year resident. "I had a terrible time."

During the interview, the police noted some inconsistencies in his story, such as his assertion he was not in the library looking at a bin Laden photo on 9/11 because he had gone to the Kaplan Center. The library's computer log showed him signed in that day.

But everything else checked out. Vedi was no terrorist.

The last official word on the case, according to a police report dated Nov. 7, was that the investigation was continuing. But the FBI confirmed last month that the matter had been dropped.

"The case ended up not being founded," said FBI spokeswoman Jerri Williams. "We didn't charge him with anything."

***

For librarians, the current Patriot Act debate conjures up earlier battles to protect intellectual freedom.

During the height of the McCarthy era, for instance, the government became increasingly interested in patrons' reading habits. "People showed up at libraries trying to find out which political books professors had read because they were going to be put on a communist list or something," said Gorman, the ALA president.

Later in the century, even as the Cold War was winding down, suspicion centered on foreigners, especially those from Soviet-bloc countries, using science libraries in the U.S. The FBI conducted numerous counterintelligence activities in libraries during the 1970s and 1980s, an effort the agency labeled the Library Awareness Program. Agents even recruited librarians as spies.

In 1987, a librarian at Columbia University found out and blew the whistle. At first, government officials denied the program existed, but eventually ended it.

"The Patriot Act is in many ways a continuation of the Library Awareness Program," said Herbert Foerstel, author of the 2004 book "Refuge of a Scoundrel: The Patriot Act in Libraries." "But there was no legislation under which the FBI visited libraries (back) then, so it was a little easier to fight."

The stir caused by the Library Awareness Program convinced many states to pass library confidentiality laws, Foerstel said

Karen Avenick keeps a copy of New Jersey's law posted near her desk.

The next time police want records from her library, however, there's a chance the request will be issued under the Patriot Act, which trumps state law. "It's very different from what our constitution says," she said. "I hate it."

Claudia Sumler, Avenick's boss, says that although she doesn't like the way law enforcement handled the situation in South County, existing law allowed the police and FBI to get the library information they needed -- without the Patriot Act.

"I really think that the (Patriot Act) provisions that have to do with libraries aren't necessary. I think that the laws are in place, and I think that this showed it," she said.

The Patriot Act, unlike criminal statutes before it, allows the government to spy on individuals not suspected of wrongdoing, including U.S. citizens, contends Grayson Barber, a privacy advocate who works with the state library association and the ACLU.

This frightens people, she said. For example, some Muslim high school students, U.S. citizens but the children of immigrants, once told her they were afraid to do library research for a school report on radical Islam because they thought the FBI would deport their families, Barber said.

"It is legal to visit Web sites about militant Islam, and it is desirable for high school students to educate themselves," she said.

The psychological effect of the act on patrons greatly concerns some librarians. "The Patriot Act is just another nail in the coffin of intellectual inquiry," said Vibiana Bowman, a librarian at Rutgers University in Camden who lectures on the subject. "It has a very chilling effect."

Proponents of the Patriot Act respond that the sanctity of a library isn't worth much if terrorists have free reign.

"You should be worried about your patrons' privacy, but you should also be worried about your patrons' well-being if the library is a place where computer criminals can go without fear," said Elliot Turrini, a former federal prosecutor in Newark and one of many officials consulted by the Justice Department during the crafting of the act.

"If the library wants to serve its patrons, it must think about both sides of the issue," Turrini said. "A knee-jerk reaction to protect privacy without a view of the total cost of your privacy policy is silly."

Avenick, a former New Jersey Library Association president, understands that argument, but doesn't believe civil liberties should be sacrificed. "It's our personal freedom," she said.

She noted that if the request for information about the mysterious patron at the South County branch had been made under the Patriot Act -- which was passed just two weeks later -- the library may not have been able to challenge it. "And we wouldn't be able to talk about it," she said.

The news that Charanjit Vedi had been cleared made her feel better about her efforts to block the subpoena. "I know we did the right thing," she said. "The guy was probably minding his own business."

As for Vedi, he said he understood investigators had to do their jobs. "That's what makes this country great," he said, adding that he would be up for citizenship soon and didn't want to appear to be taking sides.